Central Administrative Tribunal - Allahabad
Hari Narain Mishra Aged About 50 Years vs The Union Of India on 31 May, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL, ALLAHABAD BENCH, ALLAHABAD ***** Orders reserved on : 02.05.2016 Orders Pronounced on : 31.05.2016 Honble Mr. Justice Dinesh Gupta, Member (J) Honble Ms. Nita Chowdhury, Member (A) O. A. No.330/00557/2016 Hari Narain Mishra aged about 50 years Son of late Daya Shanker Mishra, Removed from Service of Melter at F.G.K. under T.No.519/MM Resident of H.No.7/7, Vijai Nagar, KANPUR. Applicant (By Advocate : Shri R.K. Shukla) Versus 1. The Union of India Through the Secretary, Ministry of Defence, Department of Defence Production & Supplies, Govt. of India, South Block, Sena Bhawan, NEW DELHI-11. 2. The Director General, Ordnance Factories, Ordnance Factory Board, Ministry of Defence, Ayudh Bhawan, 10-A, S.K. Bose Road, KOLKATA 1. 3. The General Manager, Field Cum Factory, Kalpi Road, KANPUR 208009. Respondents (By Advocate : Shri R.M. Ojha) O R D E R
Delivered by Honble Mr. Justice Dinesh Gupta, J. M.:
The Applicant has filed this OA under Section 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs:-
8(i) To issue a writ, order or direction in the nature of Certiorari quashing the impugned order No.1562/14/2001/HNM/VIG dated 25.9.2014 (Annexure A-1). No.17803/per/Disc. Dated 26.10.15 (Annexure A-2) and dated 22.4.2014 (Annexure A-3) passed by the respondent No.3.
8(ii) To issue a writ, order or direction in the nature of Mandamus directing the respondents to reinstate the applicant on the same post and pay from which he was removed w.e.f. 25.9.2014, with consequential benefits.
8(iii) To issue a writ, order or direction in the nature of Mandamus directing the respondents to pay full pay & allowances for the period from 26.7.2012 to 14.11.2013 as if, it was never passed with other consequential benefits.
8(iv) To issue any other suitable writ, order or direction in the light of the facts and circumstances of the case, which this Honble Court may deem fit and proper.
8(v) To award costs of the petition to the applicant.
2. Brief facts as stated by the applicant are as follows:-
2.1 The applicant was initially appointed as Laddleman in Field Gun Factory, Kanpur w.e.f. 18.5.1978 after doing graduation and undergoing training in Heat Treatment at Small Industries Service Institute at Kanpur.
2.2 While working on the above post, the applicant was falsely implicated in criminal case by one of his neighbours with the help of local police under Arms Act in which he was set free from the trial court. Despite this he was chargesheeted and penalised with stoppage of two increments with cumulative effect vide order No.1562/72/HNM/VIG dated 30.3.1988 and rivalry with his neighbours and police continued.
2.3 Thereafter, again on complaint of aforesaid neighbour, the applicant was chargesheeted under Rule 14 of CCS (CCA) Rules, 1965 GM/FGK, on the charges of (i) having been convicted under Sections 323, 452, 504, 324/34 and 506 by ACMM, Court No.7, Kanpur and also imposition of fine; (ii) not informing to the management; and (iii) violating Rule 3 (i) (iii) of CCS (Conduct) Rules, 1964. The said charges were enquired into by Shri Kamal Saxena, Works Manager/QC/FGK and the charges being proved the General Manager/FGK imposed the penalty of stoppage of one increment for a period of one year with cumulative effect vide their Factory Order Part II No.427 dated 11.3.2014.
2.4 Applicant further submitted that the applicant was placed under suspension on 26.7.2012 vide G.M./F.G.K. Order No.1562/14/2012/HNM/VIG.
2.5 The aforesaid suspension order remain continue till the date of removal from service i.e. upto 25.9.2014.
2.6 During the aforesaid period, i.e., 26.7.2012 to 25.9.2014, the suspension order or the subsistence allowance has never been reviewed as laid down in Rule 10(6) of CCS (CCA) Rules, 1965 and hence, the same is liable to be quashed if not reviewed within a period of 90 days.
2.7 The sentence/conviction having been affirmed by the Session Court, Kanpur on 6.8.2014, the General Manager, Field Gun Factory, Kanpur issued a show cause notice No.1562/14/2012/HNM/VIG dated 27.8.2014 proposing to award appropriate penalty, under Rule 19 of CCS (CCA) Rules, 1965, without waiting for expiry of appeal period before the Honble High Court.
2.8 The applicant got bail from the Honble High Court and still continuing on bail but the respondent No.3 passed removal order vide their order No.1562/14/2012/HNM/VIG dated 25.9.2014 without applying their minds that the applicant has been penalised twice for one and single reason i.e. (i) for concealment of criminal offence and (ii) the criminal offence being affirmed by the Session Court Kanpur. Thus, the penalty is double jeopardise. In first case, the applicant had faced Court of enquiry and penalty of stoppage of one increment was imposed on him after enquiry. In second time, the enquiry has not been made and penalty of removal from service without any enquiry has been imposed on him.
2.9 The disciplinary authority has not described anything which throws lights on clause 19(i) or (ii) & (iii) of CCS (CCA) Rules, 1965. The penalty order is thus silent on these points and on this count alone, the said penalty order is liable to be quashed.
2.10 Feeling aggrieved by the aforesaid action on the part of the respondents, the applicant has left with no option but to approach this Tribunal for redressal of his grievances.
3. Heard Shri R.K. Shukla, learned counsel for the applicant and Shri R.M. Ojha, learned counsel for the respondents at the admission stage.
4. Learned counsel for the applicant submitted that the applicant though convicted by the Criminal Court and his appeal was also rejected by the Additional District & Session Judge, Kanpur Nagar, however, he got bail from the Honble High Court of Allahabad, but in spite of that, the applicant was imposed the punishment of removal from service wrongly, arbitrarily and the appeal filed by him against the penalty order was decided without consider the legal references and provisions on the subject.
4.1 Learned counsel for the applicant further submitted that the respondents have wrongly interpreted the provisions of Rule 19 of the CCS (CCA) Rules, 1965. Lastly, he submitted that OA is liable to be allowed and the impugned orders are also liable to be quashed and set aside.
5. Learned counsel for the respondents submitted that the applicant was convicted in a criminal case, bearing No.6841/2011 filed under Sections 323, 452, 504, 324/34 and 506 of IPC and was awarded the sentence of three years imprisonment and fine of Rs.1000/- along with other sentences of imprisonment of lesser period. The criminal appeal, bearing number Appeal No.121/2012, filed by the applicant against the aforesaid conviction order was decided by the Addl. District and Session Judge, Kanpur Nagar, by which the same was dismissed vide order dated 6.8.2014 and the sentences awarded by the Trial Court were confirmed. Although against the said appellate order, the applicant also filed a revision petition before the Honble High Court of Allahabad and the bail was granted to him but the order of conviction was not stayed by the revisionary authority.
5.1 Counsel for the respondents further submitted that in view of the provisions of Section 19(1) of the CCS (CCA) Rules, the applicant was issued a show cause notice and after consider his reply the impugned order of dismissal from service was passed by the respondents. Thereafter, the applicant preferred an appeal against the said removal order before the appellate authority who, vide order dated 26.10.2015, after considering all the aspects of the case by passing a detailed and reasoned order rejected the said appeal of the applicant.
5.2 Counsel for the respondents also submitted that there is no illegality and irregularities in the impugned orders passed by the respondents and hence, the present OA is liable to be dismissed by this Tribunal.
6. After careful consideration of rival contention of the parties, we are unable to accept the contention of the learned counsel for the applicant. The only question arose after hearing the arguments of both the parties is that whether the order of removal of the applicant from service has been passed in accordance with the provisions of Rule 19 (1) of the CCS (CCA) Rules and the Government of India instructions in this regard or not.
7. Let us examine Rule 19 of CCS (CCA) Rules, which reads as follows:-
19. Special procedure in certain cases Notwithstanding anything contained in rule 14 to rule 18-
(i) where any penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge, or
(ii) where the disciplinary authority is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an inquiry in the manner provided in these rules, or
(iii) where the President is satisfied that in the interest of the security of the State, it is not expedient to hold any inquiry in the manner provided in these rules.
the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit:
{Provided that the Government servant may be given an opportunity of making representation on the penalty proposed to be imposed before any order is made in a case under clause (i):
Provided further that the Commission shall be consulted, where such consultation is necessary *[and the Government servant has been given an opportunity of representing against the advice of the Commission,] before any orders are made in any case under this rule.
8. The contention of the applicant that the right to impose a penalty carries with it the duty to act justly. The law does not envisage that each and every conviction of a government servant would culminate in a dismissal from service. Article 311(2) provides dismissal, removal or reduction in rank in the case of a conviction of a government servant. Thus there is a need to consider the gravity of offence and a clear application of mind to arrive at a decision to impose an appropriate punishment.
9. The Department of Personnel and Training, vide its letter No.105/52/77- Disc II dated 3.8.1977, had stipulated that the disciplinary authority is required to go through the judgment in its entirely and give proper consideration of the gravity of offence committed by the convicted government servant and decide on which of the appropriate penalties, if any, could be appropriately imposed.
10. The rationale behind Rule 19(1) of CCS (CCA) rules is that once an employee is found guilty in judicial proceedings held in accordance with provisions of Cr.PC and Evidence Act, which provide for a more elaborate procedure than in departmental disciplinary proceedings, the holding of a departmental enquiry thereafter is a futile exercise. Hence, holding another enquiry before taking a administrative decision is not warranted. The Apex Court in The Dy. Director of Collegiate Education v. S Nagoor Meera, (1995) 3 SCC 37, held that it is not even necessary in such cases to wait for the result of an appeal, if any, preferred by an employee. The court held:
8. We need not, concerns ourselves any more with the power of the appellate court under the Code of Criminal Procedure for the reason that what is relevant for clause (a) of the second proviso to Article 311 (2) is the 'conduct which has led to his conviction on a criminal charge' and there can be no question of suspending the conduct. We are, therefore, of the opinion that taking proceedings for and passing orders of dismissal, removal or reduction in rank of a government servant who has been convicted by a criminal court is not barred merely because the sentence or order is suspended by the appellate court or on the ground that the said government servant accused has been released on bail pending the appeal.
It was a case arising under Section 267 of the Companies Act, which provided a disqualification on the ground of conviction for an offence involving moral turpitude.36.
9. The Tribunal seems to be of the opinion that until the appeal against the conviction is disposed of, action under clause (a) of the second proviso to Article 311(2) is not permissible. We see no basis or justification for the said view. The more appropriate course in all such cases is to take action under clause (a) of the second proviso to Article 311(2) once a government servant is convicted of a criminal charge and not to wait for the appeal or revision, as the case may be. If, however, the government servant accused is acquitted on appeal or other proceeding, the order can always be revised and if the government servant is reinstated, he will be entitled to all the benefits to which he would have been entitled to had he continued in service. The other course suggested, viz., to wait till the appeal, revision and other remedies are over, would not be advisable since it would mean continuing in service a person who has been convicted of a serious offence by a criminal court. It should be remembered that the action under clause (a) of the second proviso to Article 311(2) will be taken only where the conduct which has led to his conviction is such that it deserves any of the three major punishments mentioned in Article 311(2). As held by this court in Shankardass v. Union of India 1985(2) 'Clause (a) of the second proviso to Article 311(2) of the Constitution confers on the government the power to dismiss a person from services' on the ground of conduct which has led to his conviction on a criminal charge. 'But that power like every other power has to be exercised fairly, justly and reasonably. Surely, the Constitution does not contemplate that a government servant who is convicted for parking his scooter in a no-parking area should be dismissed from service. He may perhaps not be entitled to be heard on the question of penalty since clause (a) of the second proviso to Ariticle 311(2) makes the provisions of that article inapplicable when a penalty is to be imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge. But the right to impose a penalty carries with it the duty to act justly.
10. What is really relevant thus is the conduct of the government servant which has led to his conviction on a criminal charge. Now, in this case, the respondent has been found guilty of corruption by a criminal court. Until the said conviction is set aside by the appellate or other higher court, it may not be advisable to retain such person in service. As stated above, if he succeeds in appeal or other proceedings, the matter can always be reviewed in such a manner that he suffers no prejudice. In Union of India v. V.K.Bhaskar, reported in (1997) 11 SCC 383, the Apex Court held as follows:-
9. The third paragraph of the order of dismissal refers to the advice that has been received from the Ministry of Law and Justice only for the purpose of arriving at the conclusion that in such a case it is not necessary to issue a charge sheet or show-cause notice to a person who has been found guilty by court of law. The reference to the said advice from the Ministry of Law and Justice does not mean that the disciplinary authority had not considered the matter in the light of the requirements of Rule 19(i) especially when a specific mention has been made about it in the second paragraph of the order. We are, therefore, unable to hold that the order dated 20.11.1986 dismissing the respondent from service has not been passed in accordance with the requirements of Rule 19(i) of the Rules, as construed by this Court in Union of India v. Tulsiram Patel.
10. For the reasons aforementioned, the impugned judgment of the Tribunal cannot be sustained and has to be set aside. It is, however, made clear that in case the respondent is acquitted in the appeal filed by him, which is said to be still pending in the High Court, he can move the authorities for review of the said order of dismissal as per the law laid down by this Court.
11. The similar issue had earlier been considered by the Ernakulam Bench of this Tribunal in OA No.636/2013, which vide Order dated 4.3.2016, rejected the contentions as raised by the applicant in the present OA.
12. In the present case, the case of the applicant also weaken as the criminal appeal filed by the applicant against the conviction order passed by the Trial Court was also dismissed and the sentences awarded by the Trial Court was confirmed by the appellate court.
13. Now in the light of the law settled by the Apex Court on the issue whether the judicial review of administrative action is permissible before this Tribunal. The judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala-fide. These do no appear to be attracted in this case. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. The Apex Court has held that it would be erroneous to think that the Court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself. The Tribunal cannot interfere with the findings of the Inquiry Officer. The power to impose penalty on a delinquent officer is conferred upon the competent authority either by an Act of legislature or rules made under the proviso to Article 309 of the Constitution. If the penalty has been lawfully imposed on proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority.
14. Further from the order passed by the appellate authority upon the appeal preferred by the applicant, it is clear that the appellate authority after taking into consideration all the facts and relevant circumstances passed the reasoned and speaking order which is evident from the plain reading of the order passed by the appellate authority itself.
15. In the present case, the conviction of the applicant, which is based on evidence and also confirmed by the appellate court, cannot be interfered now by the Tribunal.
16. In the result, for the foregoing reasons, the present OA is dismissed being devoid of merit. There shall be no order as to costs.
(Nita Chowdhury) (Justice Dinesh Gupta)
Member (A) Member (J)
/ravi/
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